Schnackenberg, Kiley and Fairchild, Circuit Judges.
This is a diversity personal injury action arising from the collision of two tractor-trailer units on an Indiana highway. Verdict and judgment were for plaintiff and defendant has appealed. We affirm.
The collision occurred in the early morning of September 28, 1964, on U.S. Highway 6 where it passes over U.S. Highway 41 near Hammond, Indiana. Plaintiff, a resident of Indiana, was driving a tractor-trailer east en route from Waupaca, Wisconsin, to Indianapolis. Plaintiff's vehicle collided with the rear of defendant's trailer in the outside lane of the four lane highway.
Defendants contend that the district court erred in denying their motion for a directed verdict or for judgment notwithstanding the verdict. They argue that viewing the evidence most favorably to the plaintiff the only reasonable conclusions are that plaintiff's injuries were not proximately caused by any negligence on the part of the defendants, and that plaintiff was guilty of contributory negligence as a matter of law. The defendants also contend that the court erred in denying their motion for a new trial because plaintiff's counsel was guilty of prejudicial misconduct and because the jury returned an excessive verdict.
The pleadings raised the issues: whether defendants were negligent in stopping their vehicle on Highway 6 in violation of Indiana statutes or by driving their vehicle backwards without appropriate signal or warning; whether if the defendants were negligent in one of those respects, that negligence proximately caused plaintiff's injury; and whether plaintiff was contributorily negligent in failing to keep a proper lookout, in failing to keep his vehicle in reasonable control so as to avoid the collision, and in following too closely.
The evidence and inferences most favorable for plaintiff show the following: Visibility was good and the pavement was dry as plaintiff drove east in the outside lane of Highway 6, following a flat bed truck with a bulky load covered by canvas. As plaintiff approached the "turn-off" from Route 6 to Route 41, he was going about 30 or 35 miles an hour and was 160 feet behind and "slowly overtaking" the truck ahead. About 25 feet past the "turn-off" the truck ahead veered to the left and "at that instant" plaintiff saw defendants' tractor-trailer "sitting there" or "backing up" with ordinary running lights on but no emergency lights flashing. He slammed on his "new brakes" and attempted to turn left to avoid a collision but the front right of his tractor hit the left rear of defendants' truck.
On this evidence we think the jury was entitled to find that the defendant truck driver was negligent in stopping his truck on the highway, in violation of Indiana law,*fn1 without warning or when such action could not be taken with reasonable safety, or when it was practicable to stop elsewhere, and that the negligence was the proximate cause of the collision.
Neither the rule in Drohan v. Standard Oil Co., 7 Cir., 168 F.2d 761, nor in Hayes Freight Lines v. Wilson, 226 Ind. 1, 77 N.E.2d 580, has application here. In Drohan this court approved an instruction explaining the law concerning independent intervening causes. That case has no relation to the question of whether defendant was entitled to a directed verdict on the evidence here. And the facts in the Hayes case have no similarity to the facts of this case.
Defendant bases his argument that plaintiff was guilty of contributory negligence as a matter of law on his allegation that plaintiff was following too closely in violation of Indiana law*fn2 which prohibits a tractor-trailer from following within 300 feet of another tractor-trailer.
The favorable testimony for plaintiff is that he was slowly overtaking the truck ahead with the intention to pass it. Plaintiff's conduct therefore is within the express exception -- for "overtaking and passing" -- to the prohibition against following another truck at a distance of less than 300 feet.
The fact that the plaintiff did not signal his intention to pass does not preclude the jury's conclusion, from his testimony, that he intended to pass. The jury could have thought he was not yet close enough to give a signal of his intention to pass.
One witness testified that he did not see a truck between plaintiff's truck and defendant's truck, but the jury was not required, in the face of conflicting evidence, to find, as defendants argue, that there was no flat bed truck preceding plaintiff or that it was a "mystery" vehicle. We think these were questions for the jury. The question of plaintiff's negligence in failing to keep proper lookout was also for the jury. Toenges v. Walter, 109 Ind.App. 41, 32 N.E.2d 95; Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 334.
Defendants complain of the district court's failure to grant their motion for a new trial. The grounds urged on appeal to support defendants' request for a new trial were all argued to the district judge in defendants' motion below. It is argued that plaintiff's counsel committed prejudicial error by repeatedly asking objectionable questions, thereby forcing defendants' counsel to make many ...